The Divorce Lawyers Aren’t Going to Like This . . .

When the judge in a New Jersey court released the lawyer from a long and complex divorce case (it had been under way for nine years), it was not improper for the judge to order that the lawyer return the entire $10,000 retainer the client had paid him when the case began.

The appellate court ruling came in the case of Fischer v. Fischer, Case No. A-5093-03T3, Sup. Ct. N.J. February 22, 2005. The appellate court said that the trial court acted properly in disregarding the time the lawyer had invested in the case and focusing instead on the irregularities in the retainer agreement, including a clause describing half the retainer as nonrefundable.

The judge’s oral decisions, both on the original motion and on the motion for reconsideration, indicate that he properly considered (1) the terms of the retainer agreement and emphasized — quite correctly — that its non-refundable fee provision violated R. 5:3-5(b) and was unethical n7; (2) the allegation that even though Gourvitz advised Mrs. Fischer that she could have a week to review the retainer agreement before he negotiated her $ 10,000 check, he breached that promise by negotiating the check the next day; (3) the extreme age of the case, n8 (4) the pretrial conference and trial dates, at the time of the initial ruling, were 24 and 52 days away, respectively; (5) the fact that the case’s complexities and convolutions had rendered difficult its efficient management in the future and that this case had already unduly burdened the Family Part in Essex County n9; (6) the fact that, without these funds, Mrs. Fischer would be unable to retain new counsel; (7) the impact on Gourvitz caused by the return of the payments that might have arguably been due and payable; (8) the likelihood that Gourvitz would be compensated in the future, if entitled, from Mrs. Fischer’s share of equitable distribution; (9) the burden on Gourvitz if his motion was not granted (which the trial judge alleviated by permitting his withdrawal); and (10) the prejudice to Mrs. Fischer, again, noting his concern that she would not have been able to retain new counsel if the retainer was not returned and that her claims against Dr. Fischer — including her allegations that he was over $ 280,000 in arrears in pendente lite support and that the marital home was in, or facing, foreclosure — would be further delayed if the fund was not made available for the retention of new counsel.(footnote omitted)

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